Residence Tests for Individuals: Impact of the Harding Decision

Taxation in Australia | December 2019/January 2020

U. of Adelaide Law Research Paper No. 2020-112

6 Pages Posted: 12 Aug 2020 Last revised: 13 Aug 2020

See all articles by Sylvia Villios

Sylvia Villios

University of Adelaide

Michael Blissenden

Western Sydney University, School of Law

Paul Kenny

Flinders University

Date Written: August 11, 2020

Abstract

The High Court has refused the ATO special leave to appeal from the Full Federal Court decision in FCT v Harding. This case has particular importance for individual taxpayers attempting to determine whether they are Australian residents or non-residents for income tax purposes. The two tests directly affected by the Harding case are the domicile test and the 183-day test as per s 6(1) of the Income Tax Assessment Act 1936. This article analyses the Full Federal Court decision in Harding and provides an insight as to how the two tests should be applied according to law. In so doing, the article dissects IT 2650 and TR 98/17, and suggestions are made that those rulings need to be withdrawn or substantially revised.

This article has first appeared in Taxation in Australia, Vol 54(6) and has been reproduced with permission from the Tax Institute.

Keywords: Residence tests, Harding decision

JEL Classification: K34

Suggested Citation

Villios, Sylvia and Blissenden, Michael and Kenny, Paul, Residence Tests for Individuals: Impact of the Harding Decision (August 11, 2020). Taxation in Australia | December 2019/January 2020, U. of Adelaide Law Research Paper No. 2020-112, Available at SSRN: https://ssrn.com/abstract=3671290

Sylvia Villios (Contact Author)

University of Adelaide ( email )

No 233 North Terrace, School of Commerce
Adelaide, South Australia 5005
Australia

Michael Blissenden

Western Sydney University, School of Law ( email )

Locked Bag 1797
Penrith, NSW 2751
Australia

Paul Kenny

Flinders University ( email )

GPO Box 2100
Adelaide SA, SA 5063
Australia

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